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With a 60-year heritage, Gallivan, White, & Boyd, P.A. is one of the Southeast’s leading litigation and business law firms. GWB's products liability team has extensive experience in defending a wide variety of products liability claims, including mass tort and catastrophic loss claims, as well as conducting accident investigations and providing strategic advocacy services to our clients. Gallivan, White & Boyd, P.A. has offices in Greenville, S.C., Charleston, S.C., Columbia, S.C., and Charlotte, N.C.

Scandal is afoot at Quaker. Cap’n Crunch has been outed for not being a real Captain. The truth has been right in front of us for years – the three stripes on Cap’n’s uniform signify the rank of Commander – yet, we have been blinded by Quaker’s deceptive advertising. Certainly, a class action among the millions duped into enjoying the fraud’s variety of cereals over the years is in the works.

In response to the scandal, the Cap’n took to twitter to declare his innocence:

Tell that to all of the legitimate captains that have come before you, Cap’n.

As Gawker has noted, because Cap’n commands the S.S. Guppy, he is entitled to be addressed as Captain regardless of his official rank. Even so, consumers have been purchasing the cereal for years under the assumption that it had been blessed by a man who had fully paid his dues. With no disrespect to Commanders, something about the cereal now seems less fulfilling.

The food and beverage industry must be run amok over the scandal. Somewhere, we expect the good folks over at Coca-Cola are checking the credentials of Dr. Pepper, hoping the guy actually received his degree. Can you imagine the outcry if Dr. Pepper lovers discover they have actually been consuming an over-priced Mr. Pibb all these years? Where will the carnage stop? Companies are right to utilize the services of spokespersons to market their products. A likeable spokesperson helps consumers identify with a product. But, companies need to start engaging in thorough background checks in order to save themselves from Quaker’s embarrassment. Certainly, in this case, checking the official rank of a military veteran would not have been outside the scope of discovery.

Nearly everyone knows of the infamous McDonald’s hot coffee lawsuit. For those of you who have followed the Abnormal Use law blog for a while, you know that we have covered the topic in great depth (a/k/a ad nauseam). Well, now, there’s a new spin on this old classic. Hot tequila! That’s right: An Ohio man is suing a bar for allegedly serving him a shot of tequila that was mixed with extract from one of the spiciest peppers in the world.

Brady Bennett filed suit against Adobe Gila’s at The Greene in Beavercreek, Ohio, alleging that a bartender negligently served him a shot of tequila with ghost pepper extract. According to Bennett’s attorney, Bennett and his friend were out for a night on the town when the bartender offered them a round of shots. Bennett claims the group ordered a manly round of tequila shots with apple flavoring, but Bennett alleges that the bartender gave them the old switch-a-roo with the ghost pepper extract.

Upon taking the shot, Bennett allegedly fell to the ground in pain as his throat swelled shut. He was taken to the hospital and was ultimately just fine.

So what exactly is ghost pepper extract? Ghost pepper extract is one of the hottest peppers short of weapons grade pepper spray. Pepper spray comes in between 2 to 5 million on the Scoville scale. Ghost pepper, which is actually intended for use in foods and not incapacitating criminals, comes in right behind at just under 1 million on the scale. By comparison, a jalapeno pepper is only around 10,000 Scoville units.

Serving a ghost pepper shot to a patron without a warning would certainly qualify as negligence. However, the claim seems a little suspect. It’s not like we are talking about Tabasco sauce. What bartender would a) have ghost pepper extract handy at the bar and b) think to put it in shot? Maybe the bartender was Loyd Christmas from Dumb and Dumber. According to the restaurant’s owner, they don’t even stock ghost pepper extract at their facilities. He did, however, admit that there may have been hot sauce in the shot.

Apparently, in addition to damages for medical expenses, Bennett also seeks damages for some real intense pain and suffering. Bennett’s attorney told the Dayton Daily News, “Over the course of the next two weeks, when he has to go to the bathroom, it is an excruciating experience.” Ouch.

Monster Beverage Corp and its “Monster Energy” drinks have come under a lot of heat in recent months. The FDA recently confirmed that it is investigating reports of five deaths and a heart attack that were possibly linked to consumption of Monster Energy. In September, two U.S. senators sent a letter to the FDA asking it to investigate “energy drinks” and their effects on adolescents. Now, the parents of a Maryland teenager who died after allegedly drinking two cans of Monster Energy in a 24-hour period are suing Monster.

Monster Energy is a highly caffeinated drink. Energy drinks like it are the fastest growing segment of the soft drink market, with sales rapidly increasing over the last year. Other brands of energy drinks include Red Bull, AMP, and Rockstar. But Monster is clearly the market leader. Now the billion dollar question is whether Monster Energy is dangerous. The parents of 14-year old Anais Fournier certainly believe the drinks are unreasonably so. Their lawsuit alleges that in November of 2011 Anais went into “cardiac arrhythmia due to caffeine toxicity” after two drinking two 24-ounce cans of Monster Energy on consecutive days. Apparently, the high caffeine level of the drink complicated an existing heart valve condition in the teen. She was taken to the hospital but died six days later.

The lawsuit contains two main allegations. The first is a defective design claim alleging that the drinks just contain too much caffeine. I’m not sure this claim will fly. The complaint alleges that two cans of Monster Energy contain 480 mg of caffeine and notes that this is the equivalent of 14 cans of Coca-Cola. While this is true, it is somewhat misleading. Coca-Cola is actually relatively low in caffeine in comparison to coffee or tea. A single venti (20oz) cup of regular coffee from Starbucks contains 415mg of caffeine. As such, I’m not sure you could say that a 24oz can of Monster Energy with 240mg of caffeine poses an unreasonable risk.

The second allegation is a failure to warn claim. Basically, the plaintiffs claim that Monster should have known its drinks contained dangerous levels of caffeine and placed warnings on the cans. This claim seems a little more viable at first glance. However, the cans already contain the following warning: “Limit 3 cans per day. Not recommended for children, pregnant women, or people sensitive to caffeine.”

It is unclear, however, whether this warning was on the cans in November of 2011 when the plaintiffs’ daughter consumed the Monster Energy.

Regardless of how this plays out, the caffeine scare may have already taken its toll on Monster. Monster’s stock hit a high of $79 per share in June, but has recently plummeted to around $45 per share.

As we posted last week, there’s a new “popcorn lung” case on the block. Plaintiffs’ attorneys everywhere must be licking their chops (and fingers) with news of the $7.2 million verdict in that fateful Colorado case. While popcorn lung cases are certainly not new, this one is somewhat different. So, we figured it deserved more in depth treatment. Typically, popcorn lung cases involve occupational exposure of employees who worked in a plant where a particular chemical was used as an ingredient in butter flavoring. This new case involves a Plaintiff who just REALLY liked popcorn. He brought suit claiming that eating popcorn injured him, and a jury paid him handily.

Popcorn lung is the term coined to refer to a relatively rare lung disease called bronchiolitis obliterans, which is somewhat similar to asbestosis. One purported cause of bronchiolitis obliterans is the chemical diacetyl. Diacetyl was used for many years as ingredient in artificial butter flavoring like the kind used on microwave popcorn. The chemical was the subject of a number of lawsuits and multi-million-dollar verdicts in 2004 and 2005 arising from factory workers testing and inhaling the fumes from hundreds of bags of microwave popcorn a day. At least some popcorn makers removed the chemical back in 2007

So how did this particular Plaintiff, who never worked around diacetyl, get popcorn lung? By eating popcorn. A LOT OF POPCORN. This Plaintiff claims to have eaten two bags of popcorn everyday for 10 years. He brought suit in 2008 against Glister-Mary Lee and Kroger, among others, claiming that by cooking and eating popcorn he developed bronchiolitis obliterans. While eating two bags a day for 10 years may seem like a stretch, hospital workers apparently performed chemical testing in his kitchen and found levels of diacetyl similar to factory conditions (between .5 and 3 parts per million). The Plaintiff’s attorneys argued that the defendants should have warned customers that inhaling the buttery aroma could put them at risk of lung damage. A jury agreed with these claims and gave him $2.3 million for his reduced lung capacity and other damages. They threw a $5 million in punitive just for good measure.

The question: will we see more such cases in the future or is this a one time fluke for a popcorn junkie?

There has been a $7 million verdict in Wayne Watson v. Dillon Companies, Inc. et al., in Colorado. Watson is a products liability case, and the basic allegation is that microwaveable popcorn gave the Plaintiff lung disease. Hence, the “Popcorn Lung” case, as these cases are being called. When I first heard of this type of litigation, my first thought was that this was yet another case mocking the integrity of the American judicial system, and I was frankly surprised that a federal judge had allowed this abomination to survive summary judgment. After all, the thought that microwaveable popcorn—of all things—could cause lung disease strikes me as utterly preposterous.

But after some investigation, I’ve been forced to temper my initial judgment.

Don’t get me wrong. I’m not saying I’m buying what the plaintiff is selling, even though the jury apparently did. I’m just saying I don’t think it’s as implausible as I first believed. Here’s why.

The theory of the case was not that microwaveable popcorn per se causes lung disease. It’s that a particular chemical that was commonly used to give microwaveable popcorn its buttery taste—diacetyl—can cause lung disease. And this argument is not new. In the early 2000s, there were a series of cases brought by folks who worked in commercial popcorn production facilities who made the same claim; that because of their long-term exposure to significant amounts of diacetyl in the air, they developed certain forms of lung disease. So ostensibly, there may be some science to back up the claims in those cases, which may be applicable to the Watson case.

Let’s assume – just for the sake of this post, mind you – that the research in the commercial popcorn workers’ cases is somehow founded. We’ve not reviewed all that literature, nor have we looked into the expert reports in the Watson case. But bear with us. Even if that research is founded, there seems to be a leap of faith that must be taken to get from those cases to Watson’s. Watson wasn’t a commercial popcorn worker. However, his claim is that during the corn-popping process, diacetyl is vaporized into aerosol form, and like the commercial popcorn workers, he inhaled the diacetyl which is now claimed to have caused his lung disease. We would expect Watson’s dose to be significantly less than the doses presumably inhaled by commercial popcorn workers—even though Watson claims to have eaten 2 to 3 bags of microwaveable popcorn every day for several years. The critical scientific question, then, is where does a person’s exposure to diacetyl cross the line into the danger zone?

I don’t think the importance of this question can be overstated. After all, I’ve eaten microwaveable popcorn. You’ve eaten microwaveable popcorn. And probably every member of that jury has eaten microwaveable popcorn (although after the trial, we suspect that the jurors who found the defendants liable may be cutting down on their microwavable popcorn intake). Yet, somehow, the icy hand of Orville Redenbacher reached out from beyond the grave and struck Watson down with popcorn-induced lung disease? That seems hard to believe. To win this case, plaintiff’s counsel needed to enable the jury to overcome their natural suspicion towards these claims, and the science is going to have to be pretty darn good. Apparently, it worked.

But there’s a marketing point here to be made. “Popcorn Lung” sounds ridiculous. The name trivializes the purported issues and conjures up the same ghosts that haunt the “McDonald’s Coffee” case. To many an average person, this verdict will represent everything that is wrong with the American judicial system. The proposition that microwaveable popcorn—a staple of each American household and every family movie night—is associated with lung disease will be difficult for many readers to overcome. The jury somehow overcame that skepticism. If I’m plaintiff’s counsel, the enemy here should be diacetyl, if the science truly supports that theory. Sure, it was applied to microwaveable popcorn. But that product is safe. Perhaps that explains it.

Beef Products Inc. (BPI) was featured in ABC News reports a number of times this spring. As you might guess from the title of this article, the news reports were not favorable. The reports concerned possible health and nutrition issues with BPI’s “lean finely textured beef.” ABC News even went so far as to refer to it as “pink slime.” In response, BPI has filed a defamation lawsuit against ABC News, Inc., among others, seeking $1.2 billion in damages over the allegedly false and malicious coverage.

BPI’s “lean finely textured beef” is produced in a process by which bits of beef are heated and treated with a small amount of ammonia to kill bacteria and then compressed together for use in ground beef products. Yummy! Apparently, this practice meets federal food safety standards, and the product can properly be referred to as beef. It does not appear that the USDA has ever declared the product to be unsafe. Of course, that really only means that the product probably won’t make you sick. It doesn’t necessarily mean that the product is nutritious.

According to the lawsuit, ABC News ran 11 television segments and 14 online news stories in March and early April of 2012 as part of a “month-long vicious, concerted disinformation campaign against BPI.” BPI’s attorney claims that the reporting was designed to mislead consumers to believe that BPI’s “lean finely textured beef” was unhealthy and unsafe. BPI has allegedly had to close three of its four plants and lay off 700 workers. However, ABC was certainly not the first entity to refer to BPI’s finely textured beef as “pink slime.” A Department of Agriculture microbiologist (also named in the suit) apparently coined that term a few years ago.

Unfortunately for BPI, defamation claims are notoriously hard to prove. Not only will BPI have to prove that the information was false, but it must also prove that the ABC News knew that information was false and chose to ran it anyway. Proving ordinary negligence by a news outlet just won’t cut. Luckily for the media, they can be negligent until the cows come home (pun intended) with little or no repercussions. In fairness to ABC News, I took a look at several of the stories archived on the ABC News website and nothing in them appeared to give BPI much of case (see e.g., story number 1).

Regardless of the merits of this particular lawsuit, it does go to show the power of the media. It makes you wonder whether the law should allow a news outlet to be held accountable if it negligently runs a series of false stories that essentially put a company out of business and 700 employees out of work. Discuss among yourselves.

I ran across this story recently of two men who were detained for two hours at the U.S.-Canada border after border agents discovered that the pair were attempting to bring illegal firearmsdrugsinvasive bug species chocolate kinder eggs into the Unites States.

Now, I get it. Biting into one of these eggs is potentially tricky business – the toy inside is hazardous to teeth and dental hardware, and depending on the size of the toy and the size of the person eating the egg, a potential choking hazard. But I would never have guessed that the possession of chocolate could subject the smuggler to a hefty fine.

But, like the men who were questioned about the contraband, I wonder why the eggs weren’t even confiscated from their car. Indeed, the pair was eventually allowed to bring the chocolate into the country. So much for border security.

Reading this story made me curious about two things. First, from a products liability perspective, what happens now if one of these eggs does cause someone to choke or lose a filling? Who could face potential liability? Can a manufacturer be held liable for injuries caused by a product in a country where the product is banned? What about the U.S. Government, which allowed a banned, “adulterated food object” enter the country it knew was a choking hazard? Or, the men who, after being detained, would have been aware that they were distributing a hazardous food?

Second, I became curious about what other odd items have been banned from import into the United States. I consulted the U.S. Customs and Border Patrol website, but really all I could find was this general list, which failed to provide any real details about specific products that, if discovered, might be confiscated.

I am, however, now aware that I cannot import dog or cat fur into the U.S.

We have all heard tales of foreign substances found in food products. Hams glazed with syringes, sandwiches with human skin as a condiment, and bread stuffed with dead rats, to name a few. In these situations, you may expect the unfortunate diner would want his day in court. But what happens when the defective food isn’t so glaring and gross? Better yet, what if the injury-causing substance found in the product is natural to the food itself? Recently, in Estate of Pinkham v. Cargill, Inc., 2012 ME 85 (Me. July 3, 2012), the Supreme Court of Maine offered its opinion on the issue – producers of food products are liable for injuries caused by any substance the consumer would not reasonably expect to find in the product.

At issue in Pinkham is a turkey sandwich made in the kitchen of Dysart’s Truck Stop and Restaurant in Maine. Dysart’s utilized a boneless turkey product manufactured by Cargill, Inc. for its sandwiches. The kitchen staff occasionally found pieces of bone in the Cargill turkey. One night, the plaintiff, a line cook at the truck stop, consumed a turkey sandwich during a work break. Immediately thereafter, he experienced a severe pain in his abdominal area. Thinking he was having a heart attack , he was rushed to the hospital. After some diagnostic testing, the plaintiff was found to have an “esophageal tear or perforation.” Doctors found small, white cartilaginous fragments that appeared to be bone fragments at the site of the injury. Thereafter, the plaintiff filed suit against Cargill, alleging that the turkey was a “defective or unreasonably dangerous” food. The court granted Cargill’s motion for summary judgment, concluding that average consumers would reasonably expect to find fragments of bone, a naturally occurring substance, in turkey – even of the boneless variety.

In reaching its decision, the trial court had difficulty determining the proper test to evaluate a strict product liability claim for an allegedly defective food product – an issue undecided in Maine law since the enactment of its strict liability statute in 1973. Traditionally, Maine utilized the “foreign natural” doctrine, which provides that there is no liability if the substance is natural to the ingredients. The modern trend applies the “reasonable expectation” test, which provides that a manufacturer is liable for injuries caused by a substance which the consumer would not reasonably expect to find in the product even if that substance is a natural ingredient thereof. The Court of Appeals held that the “reasonable expectation” test is consistent with the Restatement (Second) of Torts – from which Maine’s strict liability statute was crafted – and, thus, should be the law of Maine. Finding that questions on reasonable expectations are to be left to the jury, the Court reversed the grant of summary judgment in favor of Cargill and remanded the matter for further proceedings.

Regardless of the test applied, there has to be some comparative fault in this case. Even though the product was labeled “boneless,” the truck stop kitchen staff of which the plaintiff was a member had observed bone fragments in the product. It probably should have been a red flag that this isn’t turkey worthy of a Thanksgiving dinner. On top of that, the turkey was served at a truck stop of all places. Any reasonable court should find as a matter of law that one assumes the risk of truck stop dining – or, at least that is what one would reasonably expect.

Ouch! I have been called out by Max Kennerly of the Litigation and Trial law blog for perpetuating myths about plaintiff’s lawyers. I recently wrote about the “CONTAINS PEANUTS” disclaimer on my container of delicious peanuts. But, doggone it, I did not make reference to the federal statute which resulted in such warnings. Max, a friend of the blog, reminded me that the Food Allergen Labeling and Consumer Protection Act (FALCPA) took effect in 2006 and requires the word “contains” when a food contains an ingredient that is a food allergen. Kennerly correctly points out that this federal statute is why my container of peanuts says that it “CONTAINS PEANUTS” and not, at least presumably, because of some pre-legislation frivolous lawsuit.

Indeed, the FALCPA was enacted for consumers such as myself, the father of a young man who is allergic to peanuts, as I pointed out in my original post. As Kennerly suggests, the rule is very sensible, at least generally. But speaking of sensibilities, how about some common sense? Sometimes, these warnings defy common sense, and as a result, the average consumer does not take them seriously. Certainly, we here at Abnormal Use appreciate that it may have been “worth it,” as Kennerly says, to enact such legislation. Yet we, as lawyer commentators ourselves, certainly reserve the right to comment on the occasional “silly result” and unintended consequences of even the most well-intended statutes and regulations. After all, it is one thing to warn consumers, who may not know the specific ingredients of a product, to a component of the purchased food product. But it is quite another to require that a separate “contains” warning be placed on the product’s packaging when the allergen is caused by the very product itself – not some component thereof. A peanut is a peanut is a peanut, and if you buy peanuts, which are clearly labeled as such by virtue of the fact that they are, in fact, peanuts, then it seems silly to require a federal warning that the package of peanuts – already clearly marked as such – contains peanuts.

On a side note, I must say that no one appreciates the consequences of allergens more than myself. In my original post, I mentioned that I had my own anaphylactic reaction to fire ant bites several years ago. I hopped into a hot tub at a resort in South Carolina with my son, the same one with the peanut allergy. Upon entering the hot tub, I immediately began experiencing a burning and itching sensation and noticed that a number of fire ants had trailed down into the hot tub. There was a small mound of fire ants just several feet away from the hot tub, and some of them had actually gotten into the water. My son and I immediately went inside to take a shower. My eyes began to water, my lips swelled, my mouth felt funny, and I became quite dizzy. I knew instantly that I was having a life-threatening reaction to the fire ant bites. We rushed to the car and headed to the local convenience store to buy some Benadryl. Before I could pay the cashier, the room started spinning, and down I went! While I did not pass out, I also could not stand up. While I was laid out on the cold hard floor, with my son standing over me, wondering what was going on, the cashier called 911. The fire department arrived first and they tried unsuccessfully to get a blood pressure reading. When EMS arrived, the paramedic asked the first responder about my blood pressure. He said he could not get a reading. At that point, I thought it was important to let them know I was alive and conscious! When the paramedic did get a blood pressure reading, it was 60/40. By the way, none of these folks were making jokes or even smiling. This was serious business.

EMS loaded me into the back of the ambulance, and rushed me to the local emergency room, lights flashing and sirens blaring. My son rode in the front seat of the ambulance, and an EMS attendant was in the back with me. I received two injections of Epinephrine. After four hours in the emergency room, and a course of steroids, I made a full recovery.

While we are on the subject, I wonder if that resort should have had a warning sign next to the hot tub: “CONTAINS FIRE ANTS!”.

I recently enjoyed a container of “Hand-Cooked Virginia Peanuts” made by a noted Virginia company with the word “peanut” prominently in its corporate name. Thus, on the container itself, easy to see and discern, there were two prominent references to “peanuts” – one in the product name, and one in the name of the manufacturer. Yet, while I was eating those yummy, yummy peanuts, I noticed this disclaimer written on the container: “CONTAINS PEANUTS.” Really? I thought I was eating lima beans! Given that I had now seen the word “peanuts” written sideways, upside-down, and in six different languages, I decided to read further: “Manufactured on shared equipment in a facility that processes peanuts.” There it is again! Peanuts. (By the way, with whom do they “share” their equipment?)

You know what this means? Sometime, somewhere, somebody ate some peanuts that he did not know were peanuts, became ill, and almost died. Then he hired a lawyer. (Before you get all fired up about my insensitivity to peanut allergies, my own son is allergic to peanuts. Further, I had my own anaphylactic reaction to fire ants, which could be the subject of another whole blog post.). Whatever the case, I am reminded of how far we have come in the area of product safety warnings. Of course, consumers must be adequately informed of a product’s features and tendencies. But, come on, now! I really did know I was not eating lima beans. I don’t even like lima beans.

In many states, including South Carolina, there are laws about adulterated or misbranded food. Indeed, in our state it is found at section 39-25-10 of the South Carolina Code, and titled “South Carolina Food and Cosmetic Act.” I suppose there’s some interesting legislative history which would explain why they combine food and cosmetics in the same statute. But that’s for another day. For good measure, we note this statute does not include any commodity subject to packaging or labeling requirements imposed under the Federal Insecticide, Fungicide, and Rodenticide Act or the eighth paragraph of the “Bureau of Animal Industry” section of the Virus-Serum-Toxin Act. Who knew? The statute does prohibit the manufacture or sale of food or cosmetics that are adulterated or misbranded. A food is deemed to be adulterated if it contains any poisonous or deleterious substances which may render it injurious to health. Food is deemed misbranded if the labeling is false or misleading. There is more to the statute, but I will leave the details for your late reading pleasure. Nothing on peanut warnings, mind you.

While I am not a regular consumer of cosmetics, perhaps some of our readers would be interested to know that the section on adulterated cosmetics “shall not apply to coal-tar hair dye, the label of which bears the following legend conspicuously displayed there on: ‘Caution-This product contains ingredients which may cause skin irritation on certain individuals and a preliminary test according to accompanying directions should first be made. This product must not be used for dying the eyelashes or eyebrows; to do so may cause blindness.’” Moreover, under this particular paragraph, the term “hair dye” shall not include eyelash dyes or eyebrow dyes. Further, a cosmetic is deemed adulterated if it consists of “any filthy, putrid or decomposed substance”. I am not making this up.

In the meantime, I think I’ll go back and have some more peanuts. But I better read the warning first to make certain.

Disclaimer: Consult the laws of your own state for regulations governing the adulteration or misbranding of products containing lima beans.